Concrete 2000 (Pty) Ltd v Lorenzo Builders CC

• Jurisdiction: South Africa
• Judge: Jeffrey AJ
• Judgment Date: 14 February 2014
• Docket Number: 12337/2009
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 11 February 2014
• Citation: 2014 JDR 0233 (KZD)

Jeffrey AJ:

[1]

This is an application brought by the third defendant in terms of Rule 30 of the Uniform Rules of Court to set aside the service of a combined summons on him as an irregular step.

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[2]

The plaintiff instituted action against the defendants on 31 August 2009 claiming the sum of R283 340.47 for goods sold and delivered to the first defendant during the period May to October 2008. The second and third defendants were cited in their capacities as sureties and co-principal debtors.

[3]

The third defendant was described in the particulars of claim as:

"4.1

CRAIG LOEVE, an adult male, businessman, whose full and further particulars are to the Plaintiff unknown;

4.2

resident at and has chosen his domicilium citandi et executandi at 38 Ridgeside Road, Umgeni Park, Durban, KwaZulu Natal."

[4]

On or about 7 October 2009 the plaintiff attorneys incorrectly applied to the Registrar of this Court for default judgment to be entered against the third defendant.

[5]

Humour often contains many fundamental truths. An apt remark found in one of the South African Quaint Cases, Pancreas Motors v Flute (1973) 90 SALJ 181, is:

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'A lawsuit, no less than a game of tennis, requires service to get it properly started.'

There was no service of the combined summons on the third defendant when the plaintiff's attorneys applied to the Registrar for default judgment. According to an endorsement on the cover of the court file, the Registrar requested the plaintiff's attorneys to file a return of service. No return of service was filed by them. The inescapable inference is that there was no service on the third defendant and, therefore, no return to file. It is a cornerstone of our legal system that a person is entitled to notice of legal proceedings instituted against him or her: see Steinberg v Cosmopolitan National Bank of Chicago 1973 (3) SA 885 (R AD) 892C. This fundamental principle is axiomatic. The plaintiff's attorneys being officers of the Court should have known this. They should not have requested the Registrar to enter default judgment against the third defendant where there was no service of the combined summons on the third defendant.

[6]

It seems, however, that this spur from the Registrar must have prompted the plaintiff's attorneys to instruct the sheriff to attempt

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service the combined summons on the third defendant.

[7]

According to the sheriff's return of service, on 20 October 2009 'at 38 Ridgeside Road, Umgeni Park, Durban, which address is the chosen domicilium citandi et executandi of the 3rd defendant', he served a copy of the combined summons 'upon the within named 3rd defendant by placing same in the post box at the given address. At the time of delivery I found the said premises to be locked. No bell or intercom there.'

[8]

Some eight months later, on or about 25 June 2010, the plaintiff's attorneys, then armed with the sheriff's aforementioned return of service, again applied to the Registrar for default judgment to be entered against the third defendant. On this occasion, according to another endorsement on the cover of the court file, the Registrar requested the plaintiff's attorneys to file proof that the third defendant had chosen the Ridgeside Road address as his domicilium citandi et executandi. There was, of course, no such proof that the third defendant had chosen that address as his domicilium citandi et executandi. All the documents annexed to the particulars of claim were silent in this regard. No mention was made of any chosen domicilium citandi et executandi in the application for credit facilities form purportedly signed inter alia by

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the third defendant. There was not a murmur of this in the conditions of sale that were also annexed; and it was nowhere to be found in the tersely worded form styled 'Suretyship if the customer is a company/close corporation' also purportedly signed by the third defendant. And there is no record that such proof was filed by the plaintiff's attorneys.

[9]

I pause to observe that the Registrar's endorsement dated 25 June 2010 on the court file that she required proof of the third defendant's chosen domicilium citandi et executandi ought to have reasonably drawn the plaintiff's attorneys' attention to the fact that there was a fundamental difficulty with the sheriff's purported service of the combined summons on the third defendant's chosen domicilium citandi et executandi.

[10]

Yet, undeterred by this set back, the plaintiff's attorneys apparently elected not take any further steps to locate the third defendant's whereabouts in order to effect proper service of the combined summons on him; but, instead, they simply proceeded to have the action set down on the trial roll for hearing.

[11]

The action was eventually set down for trial on 12 August 2013.

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[12]

At this stage, however, the third defendant was domiciled and living permanently in Auckland, New Zealand. He had emigrated to that country during or about 2007 some two years before 31 August 2009 when the plaintiff instituted its action.

[13]

The third defendant alleged that on 16 July 2013 he received an e-mail from the second defendant. A notice of set down was attached to this e-mail together with a filing notice and the plaintiff's discovery affidavit. The third defendant went on to allege that this was the first time that he became aware of the plaintiff's action against him and that it was set down for trial on 12 August 2013. He says he immediately instructed his Durban attorneys to investigate this and to obtain a copy of the court file. The contents of the court file were made available to his attorney on 24 July 2013.

[14]

On the same day, 24 July 2013, the third defendant's attorney addressed a letter to the plaintiff's attorneys drawing their attention to the defective purported return of service. They called for urgent confirmation that the plaintiff would not attempt to take any order against the third defendant or any judgment by default or otherwise and that the action would be withdrawn against the third defendant on or before 31 July 2013. The plaintiff's

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attorneys were informed that if such confirmation was not forthcoming they would have no option but to 'enter into this action and proceed with a substantive application, in which we will be claiming punitive costs …'. It is apparent that no confirmation as sought by the third defendant's attorneys was forthcoming from the plaintiff's attorneys.

[15]

In his founding affidavit the third respondent referred to the sheriff's return of service where it was stated that the Ridgeside Road address was his chosen domicilium citandi et executanti. He alleged that he had left South Africa by 20 September 2009, the date when the sheriff purportedly served the summons, and added that he had not lived at the Ridgeside Road address for 28 years. This address, he said, was where his father had resided until he died in 2008. He stressed that he had never nominated the Ridgeside Road address 'as a domicilium address for the acceptance of summons or legal process.' Finally, he alleged that he had not taken a further step in the action save for delivering an appearance to defend which, he said, was done solely for the purpose of preventing the plaintiff from...